PUBLIC ACCESS TO PROPERTY TAX ASSESSMENT ROLLS

OFFICES AND OFFICERS ‑- COUNTY ‑- ASSESSOR ‑- PUBLIC RECORDS ‑- TAXATION ‑- PUBLIC ACCESS TO PROPERTY TAX ASSESSMENT ROLLS

(1) Except where prohibited by RCW 42.17.260(5), inspection and copying of an assessor's property tax assessment roll and supporting materials must be allowed unless the specific exemptions covering taxpayer information, as set forth in RCW 42.17.310(1)(c) and RCW 84.40.020, are applicable in a given case.

(2) Real property assessment rolls prepared pursuant to RCW 84.40.020 and 84.40.160 are lists of taxable property and not individuals and, therefore, their disclosure is not prohibited by RCW 42.17.260(5) even for a commercial purpose; whether this is also true of personal property assessment rolls will depend upon their actual form.

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                                                                  January 3, 1980

Honorable David F. Thiele
Prosecuting Attorney
Island County
Island County Courthouse
Coupeville, Washington 98239                                                                                                                   Cite as:  AGO 1980 No. 1

Dear Sir:

            By letter previously acknowledged you requested the opinion of this office on two questions pertaining to public disclosure of information maintained by county assessors and used in the assessment of real and personal property for purposes of ad valorem taxation.  We paraphrase your questions as follows:

            (1) Must a county assessor make available for public inspection and copying his real property assessment list or assessment roll and supporting documents and records and his personal property assessment list or assessment roll?

             [[Orig. Op. Page 2]]

(2) To the extent that the answer to question (1) is in the affirmative, does RCW 42.17.260(5) nevertheless prohibit the assessor from allowing access to those assessment rolls identifying the names of property owners which are maintained in a list form where such access is requested for commercial purposes?

            We answer both your questions as set forth in our analysis.

                                                                     ANALYSIS

            Under chapter 84.40 RCW, each county assessor is required to perform various duties in connection with the listing and assessment of real and personal property for purposes of ad valorem taxation.  In the performance of those duties the assessor's office maintains and has custody of certain lists, schedules, statements, records and supporting documents containing information pertinent to the administration of the laws regarding such taxation.  In determining whether and to what extent a county's assessment roll1/ is required to be open to public inspection, several statutory provisions are relevant.

             [[Orig. Op. Page 3]]

            A.  The Public Disclosure Law:

            First to be noted is chapter 42.17 RCW, the public disclosure law.  RCW 42.17.250 through 42.17.340 pertain to public records maintained by state and local agencies and specifically implement the following policy of the law as declared in RCW 42.17.010:

            ". . . That, mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society."

            Further, this same section of the law states that:

            "The provisions of this chapter shall be liberally construed to promote . . . full access to public records so as to assure continuing public confidence [in] . . . governmental processes, and so as to assure that the public interest will be fully protected. . . ."

Such declarations of policy in a law are an important guide in determining the intended effect of its operative sections.  Hartman v. State Game Commission, 85 Wn.2d 176, 179, 532 P.2d 614 (1975).  Furthermore, in construing this particular act's provisions our State Supreme Court has said that "[t]he Washington public disclosure act is a strongly-worded mandate for broad disclosure of public records."  Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978).

            The basic import of this part of the public disclosure law is to require agencies to make their records generally available for inspection and copying upon request.2/   Thus, RCW 42.17.260(1) requires each agency to make available for public  [[Orig. Op. Page 4]] inspection and copying all public records.3/   This requirement of open access to public records is not without some exceptions, however.  Primarily, those exceptions recognize the "right of individuals to privacy and . . . the desirability of the efficient administration of government."  RCW 42.17.010(11),supra.  Therefore, in addition to the deletion, to the extent necessary to prevent unreasonable invasions of personal privacy, of identifying details from documents to be made public,4/ other provisions within the law permit nondisclosure of certain information.  See, particularly, RCW 42.17.310(1) which states that:

            "(1) The following shall be exempt from public inspection and copying . . ."

and then lists some eleven separate categories of records or information including, as we will note again when directly responding to your first question below,

            "(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would violate the taxpayer's right to privacy or would result in unfair competitive disadvantage to such taxpayer."

            A significant question posed by the language of this section of the public disclosure law is whether the section itself requires, or merely permits, nondisclosure of those types of records or information enumerated therein.  Although dicta in a prior opinion of this office, AGO 1973 No. 4 at page 11, suggests that nondisclosure is statutorily required, it is now our considered opinion, upon reflection, that the  [[Orig. Op. Page 5]] proper interpretation of RCW 42.17.310,supra, itself is that it merely permits, or authorizes, nondisclosure‑-by exempting the enumerated types of records from what would otherwise be a statutory requirement, as set forth in RCW 42.17.260, supra, that they be made for public inspection and copying.  Accord, the reasoning employed by the United States Supreme Court in the recent case ofChrysler Corp. v. Brown, ___U.S.___, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), interpreting the comparable provisions of the federal freedom of information act (FOIA).5/   And see also, RCW 42.17.310(2) and (4), both of which appear to characterize the exemptions contained in subsection (1) of that statute as permissive rather than mandatory.6/   Moreover, it is in  [[Orig. Op. Page 6]] this overall context that so much of RCW 42.17.260(1),supra, as speaks of the deletion of material in the disclosure of a record must be read.  Although that provision says that,

            ". . . To the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing."

we would simply view the directive contained therein as procedural.  When disclosure of a given record is requested and the agency determines it appropriate to withhold a portion of that record on personal privacy grounds (in accordance with some provision in RCW 42.17.310, supra), RCW 42.17.260(1), supra, spells out how that is to be accomplished.  In such a case, with an accompanying justification, the agency is to delete ". . . identifying details . . ." and then disclose the remainder of the record.

            Thus, overall, ". . . [t]he statutory scheme establishes a positive duty to disclose public records unless they fall within the specific exemptions,"Hearst Corp., supra, at 130, or unless a protective order is obtained pursuant to RCW 42.17.330.  Exemptions are to be narrowly construed.  Hearst Corp.,supra, at 128-129.

            B.  The State Property Tax Code:

            In this instance, the particular records with which your questions are concerned pertain to the administration, by county assessors, of ad valorem taxation of both real and personal property belonging to both individual and corporate taxpayers.  Therefore, we must look to the pertinent provisions of the state property tax code.

            To begin with, throughout chapter 84.40 RCW there are imposed upon the assessors specific requirements as to the types of information to be contained in their assessment rolls, as well as the time and manner of their compilation.  See,e.g., RCW 84.40.020, 84.40.040, 84.40.160 and 84.40.175.  Of particular note is RCW 84.40.020 which, as amended by § 1, chapter 69, Laws of 1973 (immediately following passage of the public disclosure law at the 1972 general election), reads in pertinent part as follows:

             [[Orig. Op. Page 7]]

            "All real property in this state subject to taxation shall be listed and assessed every year . . . Such listing and all supporting documents and records shall be open to public inspection during the regular office hours of the assessor's office:  PROVIDED,That confidential income data is exempted from public inspection pursuant to RCW 42.17.310.  All personal property . . . shall be listed and assessed every year . . ."  (Emphasis supplied)

            We turn, now, to your questions.

            Question (1):

            First you have asked:

            Must a county assessor make available for public inspection and copying his real property assessment list or assessment roll and supporting documents and records and his personal property assessment list or assessment roll?

            As taxation is clearly a governmental function, any writing containing information compiled for the purpose of administering that function is within the public disclosure law's definition of a public record in RCW 42.17.020(26),supra.  Therefore, unless a specific exemption (either in the public disclosure law or elsewhere7/)  from the requirement of disclosure applies, or a court orders otherwise, that law not only permits but requires disclosure of that information.  Hearst Corp., supra.

             [[Orig. Op. Page 8]]

            As noted above, however, certain exceptions exist where disclosure threatens to violate an individual's right to privacy or to result in competitive disadvantage to the taxpayer.  Also, insofar as real property listings are concerned, the law exempts "confidential income data" from disclosure requirements.  We will take up each of these exceptions in turn.

            (a)Taxpayers' Right of Privacy:

            Among the exemptions from the requirement of public disclosure set forth in the public disclosure law itself is the following, as contained in RCW 42.17.310(1)(c):

            "Information required of any taxpayer in connection with the assessment or collection of any taxif the disclosure of the information to other personswould violate the taxpayer's right to privacy or would result in unfair competitive disadvantage to such taxpayer."  (Emphasis supplied)

            The first issue raised by this provision is how to determine whether disclosure of the contents of an assessment roll would violate a taxpayer's right of privacy.  Prior to the Court's decision in Hearst Corp.,supra, we would not have been able to answer that question on any sort of a generalized basis.  See, AGLO 1976 No. 57, AGLO 1976 No. 24 and AGO 1973 No. 4.  By that decision, however, the Court adopted, as the meaning of the phrase "right to privacy," the standard set forth in Restatement (Second) of Torts, § 652D (1977).  Hearst Corp.,supra, 90 Wn.2d at 134-138.  Under that standard, only such material in the assessment roll as "(a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public" would be exempt from required disclosure.  Hearst Corp.,supra, at 135-136.

            (b)Unfair Competitive Disadvantage:

            The second branch of this subsection of the public disclosure law provides for an exemption from disclosure of a record which, if disclosed, would "result in unfair competitive disadvantage to the taxpayer."  RCW 42.17.310(1)(c).  We are  [[Orig. Op. Page 9]] aware of no cases which have construed that provision.  In the absence of such cases, however, we may properly look to construction of similar provisions in the federal Freedom of Information Act (FOIA), as did our supreme court inHearst Corp. v. Hoppe, supra, at 128.

            The FOIA exempts from its requirements of disclosure ". . . commercial or financial information obtained from a person and privileged or confidential."  5 U.S.C. § 552(b)(4).  The determination of exemption under this section has been stated to turn on, among other factors, whether disclosure is likely to cause substantial harm to the competitive position of the provider of the information.  See,e.g.,Pacific Architects & Engineers, Inc. v. Renegotiation Board, 505 F.2d 383 (D.C. Cir. 1974); Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Dept., 435 F.Supp. 1212 (D.C.D.C. 1977).  Commercial entities, not just individuals, have enjoyed this protection as "persons" under FOIA.  See Stone v. Export-Import Bank of the United States, 552 F.2d 132 (5th Cir. 1977).  But while this sectionpermits an agency not to disclose such information, it does notrequire nondisclosure.  Chrysler Corp. v. Brown, supra.

            As we have noted, our public disclosure law, like the FOIA, similarly provides exemptions from its mandate of public disclosure.  Once the terms of an exemption are met, the act's disclosure requirements do not apply‑-unless the purpose of the exemption can be served by deletion.  RCW 42.17.310(2).  In the present context, however, we lack any specific facts against which to measure the application of the unfair competitive disadvantage exemption.  Therefore, we can only leave to you, as the legal advisor to the Island County assessor, the task of judging individual disclosure requests upon all the surrounding facts and the environment in which the business is conducted.  Cf., AGO 1973 No. 4, page 2.

            (c)Confidential Income Data:

            We turn, finally, to the exemption contained in RCW 84.40.020,supra, as amended following passage of the public disclosure law so as to provide:

            ". . . That confidential income data is exempted from public inspection pursuant to RCW 42.17.310. . . ."

             [[Orig. Op. Page 10]]

            It should initially be noted that this provision only pertains to real property tax listings.  At least in part, this 1973 amendatory proviso was enacted because of the common use of the income approach in the valuation of commercial real estate.8/   In contrast, personal property ordinarily has a known and determinate value ascertained by reference to commerce in the particular item and thus its value for purposes of taxation can be easily ascertained by reference to such commerce.  Cf., 72 Am.Jur.2dState & Local Taxation § 753 (1974).  Therefore, by its nature, the assessment of personal property is performed in a manner which does not often involve confidential income data and, accordingly, the assessment lists for personal property need no "specific supplemental rule" to the public disclosure law's exemptions.  Cf.,Hearst Corp. v. Hoppe, supra, at 138-39.

            Having so restricted the scope of the RCW 84.40.020 "exemption" (i.e., to real property tax information only) we next turn to consider the phrase "confidential income data."  The 1973 legislature provided that confidential income data would be exempt from public inspection "pursuant to RCW 42.17.310."  But that section, as we have seen, only permits nondisclosure of information required of taxpayers if disclosure would violate an individual's right to privacy or result in unfair competitive disadvantage to the taxpayer.  And, notably, although the Court inHearst Corp., supra, stated in dictum that this 1973 amendment "explicitly established that a protected area of privacy would be 'confidential income data'," 90 Wn.2d at 139, the Court also specifically noted that no request for disclosure of income data had there been made.  Id. at 134.  The Court thus was not called upon to and did not construe the meaning of the phrase "confidential income data."

            The phrase itself is nowhere defined by statute.  Absent ambiguity or a statutory definition, words in a statute should be given their ordinary meaning‑-which may be determined by resort to dictionaries.  Garrison v. Washington State Nursing Board, 87 Wn.2d 195, 196, 550 P.2d 7 (1976).  We note, accordingly, that the term "confidential" is thus defined as:

             [[Orig. Op. Page 11]]

            "communicated, conveyed, acted on, or practiced in confidence:  known only to a limited few:  not publicly disseminated . . ." Webster's Third New International Dictionary (Unabridged Edition 1971), p. 476.

            Cases decided under the federal exemption for confidential commercial information (5 U.S.C. § 552(b)(4), quoted above) have held that information is "confidential" if (1) it is of a type not customarily released to the public and (2) disclosure thereof is either likely to impair the ability of government to obtain necessary information in the future or to cause substantial harm to the competitive position of the provider of the information.  National Parks and Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974);Vereinigte Vaubeschlagfabriken Gretsch & Co. v. United States Treasury Dept., 435 F.Supp. 1212 (D.C.D.C. 1977).  We believe that the language of RCW 42.17.310(1)(c), providing an exemption from disclosure if such disclosure "would violate the taxpayer's right to privacy or would result in unfair competitive disadvantage to such taxpayer," supports an analogous reading of "confidential" here.  Thus, income data would be confidential if (1) it is of a type not customarily made public and within that "protected area of privacy" discussed by the Court inHearst Corp.,supra, or (2) its disclosure would result in unfair competitive disadvantage.

            Similarly, the work "income" means:

            ". . . a gain or recurrent benefit that is usu. measured in money and for a given period of time, derives from capital, labor, or a combination of both, includes gains from transactions in capital assets, but excludes unrealized advances in value: commercial revenue or receipts of any kind except receipts or returns of capital: . . . the value of goods and services received by an individual in a given period of time."  Webster's,supra, p. 1143.

            And finally, the word "data" simply means "detailed information of any kind."  Webster's, supra, p. 577.

             [[Orig. Op. Page 12]]

            Thus, for the purposes of the exemption contained in RCW 84.40.020,supra, "confidential income data" should be taken to mean detailed information pertaining to gains, usually measured in money, deriving from capital or labor or both, of a type not customarily made public, disclosure of which either (1) would be highly offense to a reasonable person and not of legitimate concern to the public (Hearst Corp., supra, at 135-36), or (2) would result in unfair competitive disadvantage to the taxpayer.  Included would be information pertaining to gains from transactions in capital assets, commercial revenues or receipts except receipt or return of capital, and value received by an individual.9/   As a practical matter, this definition would thus encompass many different kinds of income data which the assessor may obtain for various purposes; for example, in order to value real property by the method of capitalization of income.

            Lastly, as stated by the Court in Hearst Corp., supra, ". . . RCW 84.40.020 seeks to interpret RCW 42.17.310 as it relates to real property listing and assessment records."  90 Wn.2d at 138.  Thus, RCW 84.40.020 does not require supporting documents and records relative to real property listings to be open to public inspection if they are otherwise exempt under the specific provisions of RCW 42.17.310(1)(c).  Rather, to the extent of any conflict, the provisions of the public disclosure law control.  RCW 42.17.920.

            Summary:

            In summary, then, we respond to your first question as follows:

            Inspection and copying of an assessor's property tax assessment roll and supporting materials must be allowed unless the specific exemptions covering taxpayer information  [[Orig. Op. Page 13]] provide otherwise.  Information is deletable or exempt from required disclosure if such disclosure would constitute an unreasonable invasion of or violate an individual's right to personal privacy, as defined in Hearst Corp.,supra, of if disclosure would result in unfair competitive disadvantage to the taxpayer.  And similarly, detailed information relating to income is exempt from the requirement of disclosure where the information is of a type neither ordinarily made public nor of legitimate public concern and its disclosure would either be highly offensive to a reasonable person or would result in unfair competitive disadvantage to the taxpayer.  The applicability of one or more of these exemptions, however, must be determined upon all the pertinent facts and surrounding circumstances.

            Question (2):

            Secondly you have asked:

            To the extent that the answer to question (1) is in the affirmative, does RCW 42.17.260(5) nevertheless prohibit the assessor from allowing access to those assessment rolls identifying the names of property owners which are maintained in a list form where such access is requested for commercial purposes?

            This question concerns the effect of RCW 42.17.260(5) which provides in pertinent part that:

            "This chapter [the public disclosure law] shall not be construed as giving authority to any agency to give, sell or provide access to lists of individuals requested for commercial purposes, and agencies shall not do so unless specifically authorized or directed by law.

. . ."

            We have previously observed that (consistent with the public disclosure law's declared policy of opening up access to public records, subject to certain restrictions in consideration of personal privacy and of vital governmental interests) RCW 42.17.260(5),supra, is to be given a narrow construction.  See, AGO 1975 No. 15, pp. 7-8.  By its terms this statutory provision has no application except where access to "lists of individuals" is requested "for commercial purposes";  [[Orig. Op. Page 14]] rather, the principles enunciated in answer to your first question,supra, should be applied to requests of a noncommercial nature.

            Here, for purposes of your second question, we will assume that a commercial purpose underlies the request; i.e., the requester intends to use the information to contact or in some way personally affect those identified on the list in a manner that would facilitate that person's commercial activities (AGO 1975 No. 15 at p. 10).  To answer the question, it is thus necessary to determine, first, whether the assessment rolls fall within the ambit of the phrase "list of individuals" and second, if so, whether the county assessor is nevertheless specifically authorized or directed by law "to give, sell or provide access to lists of individuals requested for commercial purposes . . ."

            (a)Real Property:

            We will deal, first, with the real property assessment rolls.  As noted in our coverage of question (1), RCW 84.40.020 provides that:

            "All real property in this state subject to taxation shall be listed and assessed every year, with reference to its value on the first day of January of the year in which it is assessed.  Such listing and all supporting documents and records shall be open to public inspection during the regular office hours of the assessor's office:  PROVIDED, That confidential income data is exempted from public inspection pursuant to RCW 42.17.310. . . ."

            In addition, RCW 84.40.160 directs that:

            "The assessor shall list all real property according to the largest legal subdivision as near as practicable.  The assessor shall make out in the plat and description book in numerical order a complete list of all lands or lots subject to taxation, showing the names and owners, if to him known and if unknown, so stated; the number of acres and lots or parts of lots included in each description of property and the value per acre or lot: . . ."  (Emphasis supplied)

             [[Orig. Op. Page 15]]

            In conformity therewith, the sample page of your county's real property assessment roll which you included with your letter requesting this opinion lists, in its first (left-hand) column, designated parcels of property in numerical order.  Then, in its second column, it identifies the owner of each such designated parcel.  Quaere:  Does that document constitute a list of individuals within the meaning of RCW 42.17.260(5),supra, or, instead, is it a listing of property?  In our opinion, it is the latter.  Under both RCW 84.40.020 and RCW 84.40.160, it is the taxable real property within each county which is to be listed and the mere fact that this listing of such property also includes an identification of its owner (or owners) does not change its basic character.  Therefore, RCW 42.17.260(5), supra, is inapplicable and a negative answer to your second question follows.

            (b)Personal Property:

            RCW 84.40.020,supra, also contemplates a listing of personal property by further providing that:

            ". . . All personal property in this state subject to taxation shall be listed and assessed every year, with reference to its value and ownership on the first day of January of the year in which it is assessed:  PROVIDED, That if the stock of goods, wares, merchandise or material, whether in a raw or finished state or in process of manufacture, owned or held by any taxpayer on January 1 of any year does not fairly represent the average stock carried by such taxpayer, such stock shall be listed and assessed upon the basis of the monthly average of stock owned or held by such taxpayer during the preceding calendar year or during such portion thereof as the taxpayer was engaged in business."

            However, as an antecedent to that listing, RCW 84.40.040 provides that the assessor

            ". . . shall make an alphabetical list of the names of all persons in his county liable to assessment of personal property, and require each person to make a correct  [[Orig. Op. Page 16]] list and statement of such property according to the standard form prescribed by the department of revenue, which statement and list shall include, if required by the form, the year of acquisition and total original cost of personal property in each category of the prescribed form, and shall be signed and verified under penalty of perjury by the person listing the property. . . ."

            Clearly, this alphabetical list of the names of personal property taxpayers constitutes a "list of individuals" under RCW 42.17.260(5),supra, to the extent that those listed are natural persons rather than corporations or the like.  Accord, AGO 1975 No. 15,supra, at page 8.  Therefore, the prohibition of that section of the public disclosure law applies to that list and bars its disclosure to anyone for a commercial purpose in the absence of a specific legislative direction or authorization to the contrary‑-and we are aware of no such contrary provision.

            Moreover, if it is that same alphabetical list of names which is then used by the assessor as the base upon which the personal property assessment roll is built, the same answer would necessarily have to be reached with regard to the assessment roll itself, unlike the real property assessment roll described above.  In this regard, we note that you have not provided us with a sample copy of a page from that Island County assessment roll.  But if, instead, the ultimate assessment roll were to be in a different form, primarily listing property with only an identification of its owner or owners, then RCW 42.17.260(5), supra, would not apply‑-in which case our answer to this part of your second question would also be in the negative.